The Promise of the First Amendment

Last Thursday, a federal district judge ordered a New York Times reporter, Judy
Miller, sent to prison. Her crime was doing her job as the founders of this
nation intended. Here's what happened and why it should concern you.

On
July 6, 2003, Joseph C. Wilson IV - formerly a career foreign service officer,
a chargé d'affaires in Baghdad and an ambassador - wrote an article published on
this page under the headline, "What I Didn't Find in Africa." The article
served to undercut the Bush administration's claims surrounding Saddam Hussein's
nuclear capacity.

Eight days later, Robert Novak, a syndicated columnist,
wrote an article in which he identified Ambassador Wilson's wife, Valerie Plame,
as an "operative on weapons of mass destruction" for the C.I.A. "Two senior
administration officials told me," Mr. Novak wrote, that it was Ms. Plame who
"suggested sending Wilson" to investigate claims that Iraq had tried to purchase
uranium ore from Niger. After Mr. Novak's report, several other journalists
wrote stories in which they said they received similar information about Ms.
Plame from confidential government sources, in what many have concluded was an
effort to punish Mr. Wilson for speaking out against the administration by
exposing his wife as a C.I.A. operative. The record is clear, however, that
Judy Miller is not one of those journalists who reported this information.

Because the government officials who revealed Valerie Plame's status as a
C.I.A. operative to the press might have committed a crime in doing so, the
Justice Department opened a federal criminal investigation to find whoever was
responsible.

During the course of this investigation, the details of
which have been kept secret, several journalists have been subpoenaed to provide
information about the source of the leak and threatened with jail if they failed
to comply.

On Aug. 12, Ms. Miller received a subpoena in which she was
required to provide information about conversations she might have had with a
government official in which the identity and C.I.A. connection of Mr.
Wilson's wife might have been mentioned. She received this subpoena even though
she had never published anything concerning Mr. Wilson or his wife. This is
not the only recent case in which the government has subpoenaed information
concerning Ms. Miller's sources. On July 12, the same prosecutor sought to
have Ms. Miller and another Times correspondent, Philip Shenon, identify
another source. Curiously, this separate investigation concerns articles on
Islamic charities and their possible financial support for terrorism that were
published nearly three years ago. As part of this effort to uncover the
reporters' confidential sources, the prosecutor has gone to the phone company to
obtain records of their phone calls.

So, unless an appeals court reverses
last week's contempt conviction, Judy Miller will soon be sent to prison. And,
if the government succeeds in obtaining the phone records of Ms. Miller and Mr.
Shenon, many of their sources - even those having nothing to do with these two
government investigations - will become known.

Why does all of this
matter? The possibility of being forced to leave one's family and sent to jail
simply for doing your job is an appalling prospect for any journalist - indeed,
any citizen. But as concerned as we are with our colleague's loss of liberty,
there are even bigger issues at stake for us all.

The press simply cannot
perform its intended role if its sources of information - particularly
information about the government - are cut off. Yes, the press is far from
perfect. We are human and make mistakes. But, the authors of our Constitution
and its First Amendment understood all of that and for good reason prescribed
that journalists should function as a "fourth estate." As Justice Potter
Stewart put it, the primary purpose of the constitutional guarantee of a free
press was "to create a fourth institution outside the government as an
additional check on the three official branches."

The founders of our
democracy understood that our government was also a human institution that was
capable of mistakes and misdeeds. That is why they constructed a First
Amendment that would give the press the ability to investigate problems in the
official branches of our government and make them known to the public. In this
way, the press was sensibly put in a position to help hold government
accountable to its citizens.

An essential tool that the press must have
if it is to perform its job is the ability to gather and receive information in
confidence from those who would face reprisals for bringing important
information about our government into the light of day for all of us to examine.
Without an enforceable promise of confidentiality, sources would quickly dry up
and the press would be left largely with only official government pronouncements
to report.

A quarter of a century ago, a New York Times reporter, Myron
Farber, was ordered to jail, also for doing his job and refusing to give up
confidential information. He served 40 days in a New Jersey prison cell. In
response to this injustice, the New Jersey Legislature strengthened its "shield
law," which recognizes and serves to protect a journalist's need to protect
sources and information. Although the federal government has no shield law, the
vast majority of states, as well as the District of Columbia, have by now put in
place legal protections for reporters. While many of these laws are regarded as
providing an "absolute privilege" for journalists, others set out a strict test
that the government must meet before it can have a reporter thrown into jail.
Perhaps it is a function of the age we live in or perhaps it is something more
insidious, but the incidence of reporters being threatened with jail by the
federal government is on the rise.

To reverse this trend, to give
meaning to the guarantees of the First Amendment and to thereby strengthen our
democracy, it is now time for Congress to follow the lead of the states and
enact a federal shield law for journalists. Without one, reporters like Judy
Miller may be imprisoned. More important, the public will be in the dark about
the actions of its elected and appointed government officials. That is not what
our nation's founders had in mind.